1986 P Cr (PLP)

S.M. Rashid for Respondent No. 3. Date of hearing: 16th January, 1982. These two criminal revision petitions bearing Nos. 647 and 648 of 1981 have been filed by respective fathers in each case relating to their adult daughters aggrieved by the proceedings taken by the learned District Magistrate, Mianwali in purported exercise of his powers under section 552 of the Criminal Procedure Code. 2. Both these revision petitions are almost all based on identical facts and common question of law had been raised‑, therefore, they are being disposed of by a consolidated judgment. 3. Criminal Revision No. 647 of 1981 has been filed by Muhammad Nawaz and his relatives. The former is father of Mst. Jannat Bibi aged 22 years on the allegation that his said daughter was married to Muhammad Hayat son of Muhammad Bukhsh, a resident of their village vide registered Nikahnama, dated 3‑9‑1980; that his daughter had been abducted four months prior to the institution of this revision petition by Said Anwar Khan, who had filed the complaint in the Court of District Magistrate, Mianwali. However, on the references of respectable persons, she was returned to the father. It is complained that Said Anwar Khan had filed the complaint under reference to harass petitioners on the false plea that Mst. Jannat Bibi was his wife and for that purpose forged and fictitious Nikahnama had been relied upon. The learned District Magistrate by an order, dated 12-9-1981 directed the present .petitioners to set at liberty Mat. Jannat Bibi and it the directed that this order should be served on the present petitioner by the local police and in case they were reluctant and had any objection in the restoration of the woman, she should be produced before him immediately. In this situation, on 29‑11‑1981, Mst. Jannat Bibi had filed a suit before the Family Court at Bhakkar for a declaration that she was duly‑wedded wife of Muhammad Hayat and that Said Anwar Khan had no concern with her and the fabricated Nikahnama was liable to be cancelled. The Family Court by an order, dated 8‑12‑1981 issued summons, to the respondent to the suit and granted a stay order till 21‑12‑1981. 4. However, the subsequent order of the learned District Magistrate, dated 8‑12‑1981 shows that after recording .the presence of contending parties, he observed that the alleged detenu had not been produced and that the local police had shown no interest in recovering Mst. Jannat Bibi and producing her before the Court and they were negligent in performance of their duties. He further observed that respondents to the complaint, who are present petitioners, 'had also appeared before him and admitted that the detenu was with them and would produce her, but now they were purposefully refraining there from. This, according to the learned District Magistrate, showed illegal detention and respondents to the complaint were not producing Mat. Jannat Bibi in compliance of the Court's order. It was ordered that a complaint against them under section 345/347, P.P.C. be drawn up for legal action. He also ordered that the process be issued for producing Mat. Jannat Bibi on 15‑12‑1981. The petitioners, in this situation, rushed up to this Court by way of revision petition. 5. Criminal Revision No. 648 of 1981 has been filed by Rab Nawaz and his relatives. Rab Nawaz is father of Mst. Hayatan. This revision proceeds on almost all identical facts as in the connected matter. In this case, the complaint before the District Magistrate under section 552, Cr.P.C. was filed by Muhammad Iqbal Khan who claimed to be the husband of Mst. Hayatan as against the plea of father that the girl was of 21 years of age and was married with one Daim son of Sways, a resident of their village vide registered Nikahnama, dated 30‑6‑1980. Mst. Hayatan had also filed a suit similar to one filed by Mat. Jannat Bibi before the Family Court at Bhakkar on 19‑11‑1981 in which a stay order was granted upto 21‑12‑1981 to maintain status quo. In this case also, the learned District Magistrate passed an order on 8‑12‑1981 in similar terms as in the connected matter. 6. However, during the pendency of two revision petitions, Said Akbar Khan filed a habeas corpus petition bearing No. 9/ H of 1982 for the production and setting at liberty of Mat. Jannat Bibi while Muhammad Iqbal Khan, the alleged paramour in the connected matter, filed Criminal Miscellaneous No. 10/ H of 1982. Both these habeas corpus petitions were filed together and came up for hearing on the same day. The alleged detenu in each case was produced before this Court in the habeas corpus proceedings on 16‑1‑1982. Mst. Jannat Bibi in Criminal Miscellaneous No. 9/H of 1982 got her statement recorded on being produced by her father. She stated that she was married with Hayat who is her first cousin about a year and three months ago. She also identified Muhammad Hayat who was present in Court. She further stated that she was living with her husband and not with her parents and was living happily of her own free‑will. She also stated that she had filed a suit in Bhakkar Civil Courts against Said Anwar Khan. Mat. Hayatan in Criminal Miscellaneous No. 10/H of 1982 made a similar statement before this Court. She stated that she was married about one and a half years ago with Daim son of Sways who is her cousin; she had nothing to do with the petitioner who did not belong to her tribe and he was trying to force himself on her; that she was living out of her own free‑will with her father and there was no restraint put or, her. She also informed that she had filed a civil suit repelling the claim of Muhammad Iqbal Khan, who claimed to be her husband. 7. This Court, vide order of the same date i.e. 16‑1‑1982 held that the alleged detenu in each case being admittedly adults and in view of their statements, were free to go anywhere they liked. 8. These two criminal revision petitions being connected matters were also listed together with two habeas corpus petitions. 9. The result of two habeas corpus petitions falsified the assertions being made by the complainant in each case before the learned District Magistrate, Mianwali that Mst. Jannat and Mat. Hayatan were under' illegal detention. There was no denial of the fact that Mst. Jannat Bibi and Hayatan were adults. There was also no denial of the fact made that the Family Court had granted stay order for the maintenance of status quo on the suits filed by the ladies in their respective cases. This fact was brought to the notice of the learned District Magistrate. In such a situation, the learned District Magistrate ought to have attended to the stay orders of the civil Courts specially when they related to the custody of females and fathers of the two girls were present before him. I must observe that in a case where a complaint is filed under section 552, Cr.P.C. on the allegation of abduction or unlawful detention of a woman, or a female child under the age of sixteen years, for any unlawful purpose, the District Magistrate has been armed with a discretionary power to make an order fur restoration of a woman to her liberty, or of such female child to her husband, parent, guardian or other person having lawful charge of that child. The condition precedent for exercise of jurisdiction as spelt out by the B Legislature must be objectively found to exist by the learned District Magistrate before exercising jurisdiction. The law as far as possible, is to be construed in consonance with the values of the society is: which it is to be administered unless an absolute requirement and/or Intention of the law clearly appears to the contrary. In an Islamic society, a female enjoys sanctity and respect and their treatment involves the family honour. These powers are not to be exercised mechanically or as a matter of course, but with due caution and circumspection. 10. The learned District Magistrate, from a perusal of his impugned orders, does not appear to have been conscious of the discretion vested in him or other essential requirements of section 552 of the Criminal Procedure Code, while passing the impugned orders. This lack of consciousness of the true purpose and import of the law on the part of the learned District Magistrate renders his impugned orders and actions open to a valid exception on the legal plane. The learned District C Magistrate failed to properly address himself to the essential ingredients of section 552, Cr.P.C. i.e. for unlawful purpose. This could not be assumed to exist on the mere ipse dixit of the interested parties behind the back of the parents who were respondents before him while ignoring that in substance a matrimonial dispute was being raised before him by the contenders for the hands of adult females on the plea of alleged marriage. 11. Apart from what has been noted above, the fact that the alleged detenus had appeared in this Court in habeas corpus proceedings, made their statements and they were allowed to go wherever they had, the proceedings pending before the District Magistrate, Mianwali untie section 552, Cr.P.C. at the instance of petitioners in two habeas coy‑pus petitions, are rendered infructuous and without any legal efficacy and, the revision petitions are disposed of accordingly. H.A.K Revision petitions accepted.